The Tricky Business of Innovation: Can You Patent a Magic Trick?

I created a magic trick with a balloon. You stretch out the balloon’s nozzle, rip it off, and then magically reattach it as the balloon deflates. No secret props, no extra pieces: just one balloon. I spent months developing this trick, perfecting the psychology and the physiology. Then I spent weeks filming and editing the trick with magic distributor Theory11.com. We released “Detach” in February of 2012.

Some company in Russia copied it a couple months later. But they didn’t just copy my trick — move for move, beat for beat — they copied the look and feel of the marketing in the trailer, too. [You can see for yourself by comparing those two links.]

David Copperfield spends years developing illusions, perfecting patter, and mastering misdirection. And then lots of large-scale illusionists steal his style, his jokes, his presentations. “French law protects artists much better than U.S. law,” Copperfield says. “In France, I sued someone who stole my Flying illusion, and I was successful. The lawsuit prevented him from performing it again without compensating me.”

Here in America, intellectual property law offers less help to magicians.

Everyone Steals — And It’s Not About Innovation

Rick Lax

Rick Lax is a licensed, non-practicing attorney who wrote the books Lawyer Boy and Fool Me Once. He currently creates magic tricks for theory11 and Penguin Magic.

Since moving to Vegas six years ago, I’ve gotten to know a handful of notable magicians and every single one of them has been ripped off.Bizzaro makes and sells Color Changing Sponge Balls; two different manufacturers market it without his permission internationally. Losander created a big, beautiful $2,000 illusion floating table; you can now buy a crappy knockoff for $500. Jeff McBride spent years developing a manipulation act that incorporates masks with feathers, canes, umbrellas, and streamers; someone in Thailand copied the entire thing. And that company in Russia continued to copy my other tricks: a card trick, a headphones trick.

Unfortunately, none of this copying is about the kind of competition and innovation that one arguably sees in an industry like fashion.

Just last month, Criss Angel attempted an illusion very similar to one done by German illusionist Jan Rouven in 2009. It goes like this: Six swords are hung above a table, upon which the magician lies. Five swords are positioned to fall inches away from the magician’s body; one is positioned over the heart. The swords’ handles are connected to ropes and given to a spectator, who releases them, one by one, not knowing which rope is connected to the kill sword. After the magician survives the five drops, he gets off the table to demonstrate what would have happened if the spectator had released the kill sword. It plunges down to where the magician’s heart justwas.

Rouven tells me that his backstage manager caught Angel examining the prop after one of Rouven’s shows, and apparently Angel never asked Rouven for permission to perform the trick. What Angel did do — here’s where things get interesting — is get “permission” from fantasy/horror director Clive Barker, whose 1995 film Lord of Illusions contained a scene in which a magician performed a trick in which swords dropped onto a table upon which the magician lay. Angel’s prop looked a lotlike the one in Barker’s movie (circular table, gold spiral, extra sword), not like Rouven’s.

But the similarities between Angel’s trick and the Lord of Illusions trick ended there. The Lord of Illusions trick was an escape demonstration in which the magician was locked to the table and every sword was positioned to fall on him. In the movie, the swords weren’t released by ropes held by a spectator (they dropped automatically), and the table rotated in one direction while the hanging swords rotated in the other. None of these things applied to Angel’s trick.

So Angel made a prop that looked like Barker’s but functioned like Rouven’s.

The irony? The trick malfunctioned (the kill sword didn’t drop; the prop was repaired in full view of the live audience), and Angel’s website later rewrote who owned the trick by stating, “Criss is the only magician to whom Clive has given his permission and blessing to recreate this illusion, and no one else should be performing it without Mr. Barker’s permission.”

The Tricks of the Law

Patents don’t protect secrets; they reveal them.

It’s not like the rampant copying or stealing has led to any new innovations or advanced the field of magic.

If a magician invents a device that allows him to, say, teleport across the stage in the blink of an eye, he can patent the device. But the patents themselves are open to the public. Anyone can see them. When an R.J. Reynolds tobacco newspaper ad revealed Horace Goldin’s “Sawing a Lady in Half” illusion and Golden sued for “unfair competition,” the court sided with Reynolds, essentially arguing something like “if you wanted to keep it a secret you shouldn’t have patented it.”

Patents don’t protect secrets; they reveal them. Plus, many magicians’ tricks don’t use special devices; they use misdirection and sleight-of-hand.

What about trade secret law? (This is different than trademark law, which only lets you protect the name or logo of your trick.) Liability is found against only those who share secrets “improperly.” That means you can’t score a job as Copperfield’s assistant, promise to keep his secrets, and then turn around and start performing his tricks yourself. However, if you figure out one of his illusions while sitting in the audience, trade secret law won’t stop you from copying it and performing it.

Prolific magic creator Andre Kole sued the “Masked Magician” and FOX for exposing his “Table of Death” illusion. It didn’t go well. The court said the trick was too similar to a trick that had been published in several magic books the 1800s, and that under trade secret law, the courts must consider the “ease or difficulty with which the information could be properly acquired or duplicated by others.” Because if a trick is published in severalbooks, it’s easy to acquire the information.

Copyrighting Magic

Although the federal Copyright Act of 1976 protects original “dramatic works” and “choreographic works,” you can’t currently copyright a magic trick.

You can only copyright the “pantomimes” surrounding the trick. That’s what Teller (of Penn & Teller) did with his “Shadows” illusion. When a Dutch magician started selling a knockoff version, Teller sued him for infringement, even though international litigation can get messy. The suit wasn’t about revealing the props’ secrets; it was about the stolen choreography.

But should it be?

Current copyright law for magic is like saying you need a gun to rob a bank effectively, so, actually, let’s just make the whole robbery legal.

Let’s say I invent a Magic Jacket. I show both sides of the jacket, front and back. Looks totally normal. I slip the jacket on and zip it up. I pull its hood over my head. Then I put my arms behind my back. I pause. And then, as if possessed, the zipper unzips, the hood flies back, and the jacket peels itself off my shoulders and drops to the ground. (Applause here.)

It’s a trick jacket, obviously. It looks normal, but it’s got all sorts of wires and bands and electronics inside. I might spent years testing and perfecting the mechanics, but when I go to the copyright office, the only thing I can protect is the bit about showing both sides of the jacket and the bit about putting my arms behind my back.

Now let’s imagine a rival magician steals my trick. Performs it on TV, on YouTube, at a theater next to mine. So I head to court to enforce my copyright. I tell the judge, “He’s showing both sides of the jacket and he’s putting his arms behind his back! That’s my copyrighted choreography!”

My rival can defend himself with the merger doctrine. He’ll say that my choreography is the only way to do the jacket trick: He has to show both sides of the jacket to show that it’s (ostensibly) normal. Of course he has to put his hands behind his back, so his audience doesn’t think he’s unzipping the jacket from the inside. He’ll argue that he can’t perform the uncopyrightable trick without the copyrightable choreography, and that he’s therefore not liable for infringement. And his argument will probably hold up.

This is like saying: It should be legal to bring a gun to a bank robbery because you need a gun if you’re going to rob a bank effectively, so, actually, let’s just make the whole robbery legal.

In magic, the prop and what you do with it are inseparable.

Look at it like this: You can copyright a choreography, and you can copyright a dramatic monolog, and a magic trick is just a combination of the two. It’s a series of particular movements — close-up magic is choreography of the hands — with a series of particular words. Just because some tricks incorporate special props (as the Magic Jacket trick would) doesn’t mean they should be less protectable.

The special prop alone is not the “work”; the “work” is a combination of the prop and what you do with it. In magic, the two are inseparable. If you’ve got a Sawing a Woman in Half box, the only thing you can do with it is make it look like you’re cutting a girl in two.

So what can magicians do? Is there any hope for magicians protecting their intellectual property?

Maybe. Hope may lie in Trade Dress law, which could prevent one magician for copying the look and feel of another magician’s show. (Think back to the Apple/Samsung lawsuit — that’s Trade Dress law.)

Loshin points out that good magic secrets are hard to come by, and that the penalty for improperly sharing them, while not court sanctioned, is severe:

“‘Proprietary magic’ remains difficult to access. At this level, access is far less formal and granted on a more ad hoc basis. One must impress magic’s top practitioners and earn their trust and respect … Those who violate the norms [of exposure] lose the respect of their peers. And such esteem counts for much … Magicians who behave badly may not be invited to give lectures, perform in magic competitions, or be featured in magic trade publications.”

And lastly, maybe hope for the magic community as a whole lies in the illusions that haven’t yet been created — in innovating the art form.

At least, that’s what Copperfield thinks: “I believe it’s possible to achieve justice in the American court system, but it takes a lot of time, energy, and money. It’s not always worth focusing important bandwidth on that when you can apply the same time and energy to creating something new and different.”